Consultation on the registration of new town or village greens · 2013-02-13 · Crown. This publication (excluding the departmental logo) may be re-used free of charge in any format

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Consultation on the registration of new town or village greens July 2011

Department for Environment, Food and Rural Affairs Nobel House 17 Smith Square London SW1P 3JR Telephone 08459 335577 Website: www.defra.gov.uk

© Crown copyright 2011 Copyright in the typographical arrangement and design rests with the Crown.

This publication (excluding the departmental logo) may be re-used free of charge in any format or medium provided that it is re-used accurately and not used in a misleading context. The material must be acknowledged as crown copyright and the title of the publication specified.

Information about this publication is available from the address specified in Chapter 2.

This document is also available on the Defra website.

Published by the Department for Environment, Food and Rural Affairs

PB13617

July 2011

Cover page (clockwise from top left): 1. Buddleia Fields, near Frankland Road, Croxley Green, Hertford-

shire (application granted) 2. The Common, Brindle Lane, Forty Green, Beaconsfield, Bucking-

hamshire (application granted) 3. Land to the east of Fordlands Road and south of Germany Lane,

Fulford, York (application rejected) 4. The Field, Seatoller Close, Morton, Carlisle (application granted)

All photos in this consultation paper (except where credited)— source: CCRI

Basic information

Scope of the consultation

Topic of consultation Reform of the arrangements for registering new town or village greens.

Scope of consultation The aim of this consultation is to seek the views of consultees on a proposed package of reforms to the new greens registration system, most of which would require primary legislation.

Geographical scope England (but see paragraph 1.6.2 for relevance to Wales).

Impact assessment A consultation stage initial impact assessment on the proposals for reform has been prepared — this is published alongside this consultation paper.

Basic information To This consultation is primarily aimed at: landowners and

developers, local authorities, planning professionals, civic amenity, recreation and conservation bodies.

Body responsible for the consultation

This consultation is being managed by the Commons and Access Implementation Team within the Department for Environment, Food and Rural Affairs

Duration This consultation will run for 12 weeks. It begins on 25 July 2011 and ends on 17 October 2011.

Enquiries Please contact the Commons and Access Implementa-tion Team in Defra: Tel: 020 7238 6326 [email protected]

How to respond Please send your response to: ELM/ASU Department for Environment, Food and Rural Affairs 3/C Nobel House 17 Smith Square LONDON SW1P 3JR E-mail : [email protected]

Additional ways to become involved

This will be a largely written exercise, though we do intend to hold informal meetings with interested groups.

After the consultation A summary of responses to the consultation will be made available by the Department within three months of the end of the consultation period (see chapter 2.2 for further information).

Compliance with the code of practice on consultation

This consultation complies with the Government’s code of practice on consultations.

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Contents

Ministerial Foreword ................................................................................................ 1 Chapter 1 : Introduction, objectives and summary ............................................... 3

1.1 Introduction ........................................................................................................... 3 1.2 New Local Green Space designation .................................................................. 4 1.3 Why a review? ....................................................................................................... 5 1.4 Summary of proposals ......................................................................................... 6 1.5 Impact assessment ............................................................................................... 7 1.6 Territorial extent .................................................................................................... 8

Chapter 2 : How to respond ..................................................................................... 9 2.1 Responses ............................................................................................................. 9 2.2 Copies of responses ............................................................................................. 9 2.3 Enquiries ............................................................................................................. 10 2.4 Complaints or comments about this consultation paper ................................ 10

Chapter 3 : An introduction to greens ...................................................................13 3.1 The origins of greens ......................................................................................... 13 3.2 The registration system ..................................................................................... 14 3.3 The role of the commons registration authority .............................................. 15 3.4 The effect of registration as a green ................................................................. 16

Chapter 4 : Use of the current system ...................................................................19 4.1 Level of activity ................................................................................................... 19 4.2 Study of determined town and village green applications .............................. 21 4.3 ACRA survey ....................................................................................................... 22 4.4 Land registered as a green ................................................................................ 22 4.5 Registration benefits .......................................................................................... 24 4.6 Registration costs ............................................................................................... 25

Chapter 5 : Proposals for change ..........................................................................29 5.1 Introduction to the proposals ............................................................................ 29 5.2 No change ........................................................................................................... 29 5.3 Streamline sifting of applications ...................................................................... 30 5.4 Declarations by landowners .............................................................................. 32 5.5 Character ............................................................................................................. 35 5.6 Integration with local and neighbourhood planning ........................................ 38 5.7 Charging fees ...................................................................................................... 41 5.8 Cumulative impact .............................................................................................. 43 5.9 Voluntary registration under section 15(8) ....................................................... 46 5.10 Alternative options ............................................................................................. 47 5.11 Other greens issues ........................................................................................... 47

Annexe A: List of questions ...................................................................................49

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Ministerial Foreword

We all value the open spaces where we live. Places where we can walk the dog and the children can play, or just somewhere to get away from the hustle and bustle of everyday living and enjoy some peace and quiet. The difference open spaces make to people’s quality of life means that they are essential to the well-being of any community.

Town and village greens have played an important part in our communities since time immemorial. From their earliest use greens have been a place where communities come together, celebrate fairs and festivals and take part in sporting and social activities.

The essential functions greens provide were recognised in the Commons Regis-tration Act 1965, which allowed greens to be registered and to secure permanent protection. The protection of registered greens remains assured today.

But successful, vibrant communities also need a range of services to function properly. People need decent homes that are affordable. They need local schools, health care facilities and other amenities. They need jobs and so places to work. This often means new development, which sometimes can be controversial. Getting the balance right — between providing high quality open space where people want it and allowing legitimate development to go ahead where it is serving the interests of the community — is not always easy. But for our communities to continue to be vibrant, thriving and sustainable places to live and work we must strive to achieve this balance. This Government is returning the power to shape their neighbourhood to local people.

Over recent years we have seen a substantial increase in the number of applica-tions for new pieces of land to be awarded the status of a green. This often reflects the real desire of local people to try and protect land which they value. But there are concerns that some are using it to undermine the planning proc-ess, so as to prevent or delay development which is badly needed and wanted in the community. Resolving these issues at a local level can often be difficult and costly for local authorities and landowners, and can be frustrating for local peo-ple awaiting the outcome of an application.

The time is therefore right to review the new greens registration system, to see whether we can strike a better balance between protecting high quality green space valued by local communities and enabling the right development to occur in the right place at the right time. I also want to see whether we can reduce the burden on local authorities which are responsible for implementing it, and on landowners who are affected by applications.

The publication of this consultation is the first step in such a review. Your input will be vital in establishing whether we can improve the current system within the objectives we have set. At the same time, the Government has announced that

Ministerial Foreword

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it will introduce a new Local Green Spaces Designation in the planning system, to protect green spaces of particular importance to local communities. This designation would be used in local and neighbourhood planning and would be backed by strong planning policy in the new National Planning Policy Frame-work.

We plan to announce our conclusions on how we intend to take forward any reforms to greens registration, early in 2012.

Richard Benyon Minister for the Natural Environment and Fisheries

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Chapter 1 : Introduction, objectives and summary

1.1 Introduction ‘Village green’ — the very words are evocative of great age and tranquil-lity, of turf as rich in hue as it is trim in a setting untouched by time.1

1.1.1 These words, from the Royal Commission on Common Land reporting in 1958, are as appropriate today as they were half a century ago. Town or village greens are an intrinsic part of the English community. Many villages and market towns are clustered around a green2 at their heart: often a remnant of the once extensive wastes of the manor in mediæval times. They are instantly recognis-able as such, whether to the lifelong resident, or the passing visitor.

1.1.2 The passing visitor would be unsur-prised to learn that such greens were, for the most part, registered as part of a statutory exercise to record all common land and greens in the late 1960s. But our visitor might be astonished to learn that greens may still come into being, and be registered under the same

system, some forty years later. And whereas the majority of greens recorded and protected in the late 1960s were open and unenclosed land (much of it lacking any known owner), some of those sought to be registered today are very different in character — public parks, playing fields, grazing meadows and golf courses.

Photo 1: A ‘traditional’ green: Comberton, Cambs © Andrew Dunn, 29 August 2005

Photo 2: A new green: the Trap Grounds, Oxford (source: Natural England)

1.1.3 An estimated 185 applications were made in 2009 to register new greens3. While some applications are uncontroversial, and may, even today, relate to land whose owner remains unknown, others are strongly contested by landowners and even local commu-nities, particularly where an application affects plans to develop the land for commercial, residential or community use. The cost to the applicant and supporters, the local authority, and the

1 Royal Commission on Common Land 1955–58, Cmnd 462: paragraph 18. 2 We refer in this consultation paper only to ‘greens’: there is no legal distinction between a town and a village green. 3 See chapter 4.1, figure derived from 2009 survey and scaled up for non-responding commons registration authorities and for the fourth quarter 2009. We refer in this consultation paper to greens registered after 1970 as ‘new’ greens.

Chapter 1: Introduction, objectives and summary

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landowner and other objectors, in determining the application, may be very high and perhaps exceed £100,000; the cost to the landowner of an application which is granted may be higher still.

1.1.4 The greens registration system ensures that some land in long-term informal use by the community for recreation is given permanent protection. But such protection can bring about unintended consequences: landowners may well want to exclude all public use of their land, wary of their land becoming a green — even though any such use might fall well short of the criteria for registration. Back in 1891 in Blount v Layard4, Lord Justice Bowen said:

nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misun-derstood.

Any such system must therefore seek a compromise between the desirability of protecting sites in long-standing public use for recreation, and encouraging landown-ers to tolerate informal recreational use without fear of the consequences.

1.1.5 But the greens registration system does not operate to protect all valued sites equally. It is founded in principles of customary law (the law of local custom which was upheld in mediæval England), and even today, can confer protection only where long use can be shown in accordance with the statutory criteria. It does not take account of local need, either for open space, or for alternative uses of the land, nor of the costs of registration to the landowner. Nor does it have regard to the value which local people place on the land, either as a place for recreation or as a green space in the community. The system is focused on a narrow set of criteria without regard to wider legitimate interests.

1.2 New Local Green Space designation 1.2.1 To help address the lack of a more flexible mechanism to protect valued open spaces, the Coalition programme for government includes a commitment to:

…create a new designation — similar to SSSIs — to protect green areas of particular importance to local communities.5

1.2.2 Delivery of the new designation is set out in the Business Plans of the Department for Communities and Local Government6 and Defra7.

1.2.3 The Natural Environment White Paper announced that the new Local Green Space designation will give local people an opportunity to protect green spaces that

4 Layard was sued for fishing on a stretch of the River Thames owned by Blount: [1891] 2 Ch. 681n., 691. 5 www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf. 6 http://www.communities.gov.uk/publications/corporate/businessplan2011. 7 www.defra.gov.uk/corporate/about/what/business-planning/.

http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf

http://www.communities.gov.uk/publications/corporate/businessplan2011

http://www.defra.gov.uk/corporate/about/what/business-planning/


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have significant importance to their local communities, because of, for example, their landscape, historic, recreational or nature conservation value.

1.2.4 The new Local Green Space designation will be backed by strong planning policy in the National Planning Policy Framework, now published for consultation, which sets out the details of how the policy will work. We are consulting on the basis of giving the Local Green Space designation the same level of protection as green belt land. The Local Green Space designation will be introduced by April 2012.

1.2.5 The Government’s plans for neighbourhood planning set out in the Localism Bill, and its commitment to introduce a new Local Green Spaces designation through the planning system, give communities new, powerful tools to shape their future development, and to ensure the continuing protection of valued green spaces.

1.3 Why a review? 1.3.1 The volume of applications to register new greens, the character of applica-tion sites, the controversy which such applications often attract, the cost of the determination process on the parties affected, and the impact of a successful registration on the landowner: all these aspects are generally very different from what was envisaged by the Royal Commission in 1958.

1.3.2 While applications for registration of new greens have greatly increased over the last 20 years, the process for determining greens applications is less than satisfactory and undermines credibility in the registration system because:

• applications may lack substance or merit, but registration authorities cannot easily reject them without disproportionate effort;

• applications may be submitted at any time up to, or even after, development has begun and so can act as a ‘last ditch’ attempt to stop authorised develop-ment;

• applications stand outside the planning system, and must be determined on legal criteria without consideration of need, impact or hardship affecting any of the parties;

• the increasing number of applications is raising costs to registration authorities, and leading to delays in applications being determined;

• making an application is free to the applicant and so there is no mechanism for discouraging vexatious or speculative applications, notwithstanding the costs imposed on landowners, developers and registration authorities; and

• application sites may bear little relationship to traditional concepts of a green, so that the physical setting of a green (e.g. whether it is open to the road, whether it is grassland or woodland) is generally immaterial to the application’s success.

Many of these impacts occur irrespective of whether an application is granted: although a successful application is likely to impose greater costs, particularly on the landowner, any application is capable of incurring substantial expenditure by the landowner, the registration authority, the applicant, and other supporters and objec-tors.


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1.3.3 In light of this, and the Government’s commitment to introduce the Local Green Spaces designation through the planning system, we believe that there is a case to reform the registration system so as to achieve an improved regulatory balance.

1.3.4 This consultation paper explains the background to the current statutory system for registering new greens, and sets out measures which we propose to adopt to reform the system. The purpose of the consultation is to test whether the proposed reforms are appropriate and proportionate. Given the increasing level of applications over the last few years, and the consequential impact on development proposals, this review is a timely response.

1.3.5 The objectives of the proposed reforms are to:

• strike a better balance between protecting high quality green space, valued by local communities, and enabling legitimate development to occur where it is most appropriate, and

• ensure that when land is registered as a green, because of the exceptional protection afforded to new greens, the land concerned really does deserve the level of protection it will get.

1.3.6 We also wish to improve the operation of the registration system where applications to register land as a green are made so as to reduce the burden on local authorities which are responsible for implementing the registration system, and on landowners.

1.4 Summary of proposals 1.4.1 Each of the proposals identified in this consultation has been briefly summa-rised here. A more detailed description of each proposal is available in Chapter 5 below.

Do nothing • No change (chapter 5.2): The existing registration system would remain un-

changed.

Refining the registration system • Streamline sifting of applications (chapter 5.3): This proposal would enable

registration authorities to reject applications at an early stage where insufficient evidence had been submitted or where there was strong evidence that the ap-plication could not meet the criteria for registration.

• Declarations by landowners (chapter 5.4): Landowners would be given the opportunity to make a statutory declaration to negate any evidence of use of a claimed green during the period while the declaration remained in effect.

• Character (chapter 5.5): New legislation would add a ‘character’ test to the existing criteria for the registration as a green. Only land which is unenclosed, open and uncultivated would be eligible for registration.


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Taking account of the planning system in shaping local places • Integration with local and neighbourhood planning (chapter 5.6): This proposal

would take decisions on the future of sites into the planning system. It would prevent registration of land which was subject to a planning application or per-mission for development of the site, or which was designated for development or as a green space in a local or neighbourhood plan.

Contributing to costs • Charging fees (chapter 5.7): An applicant would be required to pay a fee when

making an application. Legislation would allow each registration authority to set its own fee subject to a prescribed ceiling. It is not intended that the fee would allow for full cost recovery. Fees could be refundable if the application were granted.

1.4.2 We also seek views on Alternative options (chapter 5.10) and on Other greens issues (chapter 5.11).

1.4.3 We believe that the measures set out under the last three themes will each contribute to the achievement of the objectives for the review, but that only reform containing a comprehensive package of measures, together with the Government’s proposals for a new Local Green Spaces designation, and for neighbourhood planning set out in the Localism Bill, will fully deliver the objectives sought.

1.4.4 This consultation does not consider any proposals to relax the criteria for registration of new greens, as a relaxation would not be consistent with the Govern-ment’s objectives for the consultation. Nor have we included any proposals to diminish the level of protection afforded to greens, because this would affect all greens, both those registered in the 1960s and those subsequently registered. While it would be possible to assign a different, lower, level of protection to new greens, such an approach would be confusing, and would do nothing to tackle the defects inherent in the present registration system.

1.4.5 Responses to the consultation will be used to help shape changes to the greens registration system, by identifying and refining those proposals which are most likely to secure the Government’s objectives. We expect to announce our conclusions early in 2012.

1.5 Impact assessment 1.5.1 An impact assessment is published to accompany the proposals in this consultation paper. We explain in paragraphs 109–111 of the impact assessment that we welcome evidence from persons and organisations that have been a party to a greens registration application, and that can supply further evidence of the costs and benefits of their involvement in the process. We would particularly welcome feedback from:

• Applicants: can you tell us about the time spent gathering evidence from poten-tial users of the application site, or of the extent of use made of the green following registration?


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• Landowners: do you have information about the costs of opposing an applica-tion, and the impact of a successful registration on land values?

• Local authorities: can you provide further information on the costs of process-ing applications, including the costs of officers’ time?

1.5.2 We are also seeking information about the impact of the proposals (individu-ally or as a package) on applications to register new greens — particularly the effect which they would have had on past applications. For example:

• Applicants: would the proposed fee have deterred your application, and would a refundable fee have made a difference? (It would be helpful to know whether your views are associated with an application which was granted or unsuccess-ful.)

• Landowners: if your land has been the subject of an application, had you made a declaration for that land in relation to public rights of way (so that one might assume that you would have made a similar declaration in relation to greens had the opportunity been available at the time)? Would such a declaration have affected the outcome of the application?

• Local authorities: how would applications granted in the past have fared had the proposals for additional character and planning tests been in place at that time?

1.5.3 If you are able to supply evidence of this kind, please say whether you are willing to have your evidence quoted, and if so, whether you wish it to be attributed to you8. Such evidence will improve our assessment of the costs and benefits of the proposals set out in this consultation paper, and help inform the Government’s decision on how to proceed in the light of the consultation.

1.6 Territorial extent 1.6.1 We are inviting views on this consultation only in relation to England.

1.6.2 Any changes to primary legislation arising from this consultation would apply to England only. This is because no consultation on the need for, or appropriateness of, any change has been carried out in Wales. Any new legislation would, however, be worded to give the Welsh Ministers the power to apply any or all of the changes should they wish to implement them in Wales. This ‘power to apply’ would give the Welsh Ministers a discretionary ability to bring forward any changes if, after a full consideration of, and public consultation on, those changes, they are considered to be appropriate for Wales.

8 Please note that there may be circumstances in which Defra will be required to communicate information to third parties on request, in order to comply with its obligations under the Environmental Information Regulations 2004.

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Chapter 2 : How to respond

2.1 Responses 2.1.1 This is your chance to contribute to a consultation on the system for register-ing new greens. There are a number of specific questions in Chapter 5 below and these are listed in Annexe A at page 49. Don’t feel that you have to respond to all the questions if you do not wish to do so, but we encourage all respondents to consider Question 1. on page 30.

2.1.2 Please send your response, by 17 October 2011, to:

ELM/ASU Department for Environment, Food and Rural Affairs 3/C Nobel House 17 Smith Square LONDON SW1P 3JR

E-mail : [email protected]

Please send your response using only one of these options.

2.1.3 To facilitate subsequent analysis, please ensure your comments clearly refer to question numbers, or paragraph numbers where applicable. If you are comment-ing on a proposal, please indicate (where possible) whether you support or oppose it (subject to any comments), as this will assist in compiling a statistical summary. If you are responding as a representative organisation, please include in your response a summary of the people and organisations which you represent.

2.2 Copies of responses 2.2.1 When this consultation ends, we intend to put a copy of the responses in the Defra library. This is so that the public can see them. Also, members of the public may ask for a copy of responses under freedom of information legislation. If you do not want your response — including your name, contact details and any other personal information — to be publicly available, please say so clearly in writing when you send your response to the consultation. Please note, if your IT system automati-cally includes a confidentiality disclaimer, that won’t count as a confidentiality request. Please explain why you need to keep details confidential. We will take your reasons into account if someone asks for this information under freedom of informa-tion legislation. But, because of the law, we cannot promise that we will always be able to keep those details confidential.

2.2.2 We will summarise all responses and place this summary on our website. This summary will include a list of names of organisations that responded but not people’s personal names, addresses or other contact details. To see consultation responses and summaries, please contact the library at: tel: 020 7238 6575, e-mail: [email protected]. Please give the library 24 hours’ notice. There is a charge for photocopying and postage.

mailto:[email protected]


Chapter 2: How to respond

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2.3 Enquiries 2.3.1 Enquiries about the content of this consultation paper should be made to:

Commons and Access Implementation Team Department for Environment, Food and Rural Affairs 3/B Nobel House 17 Smith Square LONDON SW1P 3JR

Tel: 020 7238 6326 E-mail: [email protected]

Please do not use this address for responses to the consultation.

2.3.2 The consultation paper, together with a list of the organisations whose attention we have drawn to this consultation paper, is also available on the Defra website: www.defra.gov.uk/consult/open/ . If you think any other organisation should see the consultation paper, please let us know.

2.4 Complaints or comments about this consultation paper 2.4.1 The consultation document has been drafted in accordance with the Gov-ernment’s code of practice on consultations. The code aims to increase the involvement of people and groups in public consultations, minimising the burden it imposes on them, and giving them a proper time to respond. Consultations are expected to adhere to seven headline criteria:

• Criterion 1: When to consult • Criterion 2: Duration of consultation exercises • Criterion 3: Clarity of scope and impact • Criterion 4: Accessibility of consultation exercises • Criterion 5: The burden of consultation • Criterion 6: Responsiveness of consultation exercises • Criterion 7: Capacity to consult

The code may be viewed on the Department for Business Innovation & Skills’ website at: www.bis.gov.uk/policies/better-regulation/consultation-guidance.

2.4.2 If you have any comments or complaints about this consultation process, other than comments on the consultation document itself, you may wish to contact Defra’s consultation co-ordinator at the address below:


http://www.defra.gov.uk/consult/open/

http://www.bis.gov.uk/policies/better-regulation/consultation-guidance


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Consultation Co-ordinator Department for Environment, Food and Rural Affairs Area 7C Nobel House 17 Smith Square LONDON SW1P 3JR

Tel: 020 7238 1205 Fax: 020 7238 6447 E-mail: [email protected]

Please do not use this address for responses to, or enquiries about, the consultation itself.

Photo 3: Little Milton village green, Oxon (application granted)



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Chapter 3 : An introduction to greens

3.1 The origins of greens 3.1.1 Greens have a long history in England. However, their origin is unclear. Some probably developed from places in Anglo-Saxon settlements where livestock were housed or common grazing occurred: this land was often waste land of the manor9, subject to rights of common to graze animals, which over time and because of its location at the centre of the community, was isolated from the more extensive manorial wastes outside the village, and became less and less important for graz-ing10. There is also evidence that a number of greens were created through the establishment of settlements following the Norman Conquest in the 11th Century. These so-called 'green villages' were planned and laid out, comprising a row of properties either side of a green, which could be easily defended.

3.1.2 Such land, in or close to the settlements, soon evolved into an essential community space serving a variety of the needs of the village: for recreation, sports and fairs. Ponds provided watering holes for livestock and greens often contained wells supplying the community with water. The village stocks were sometimes located on the green providing a public deterrent to potential law breakers. Greens have traditionally been used for cricket but in the past they have also been used to practise archery. Various festivals throughout the year were also celebrated on the green, with the tradition of maypole dancing lasting right up until modern times. 3.1.3 Where long-standing use could be shown to have occurred, the courts began to regard the use as customary, and the land was recognised in law as a green with protection from interference. The legal basis for greens is within our common law (of which customary law governing the use of greens is a part) and there are records of legal cases relating to customary rights dating back to at least 166511. The first time that the term ‘village green’ was used in an Act of Parliament was in the Inclosure Act 184512. This Act, along with the Commons Act 1876, provides the legal protection which regis-tered greens enjoy to this day (see chapter 3.4 below).

Photo 4: An inclosure allotment dating from 1867: East Clandon, Surrey

3.1.4 The Inclosure Act 1845 also enabled the Inclosure Com-missioners, in authorising the inclosure of common land, to

9 The waste of the manor is the part of the lands owned by the mediæval lord of the manor which was not occupied by the lord himself, nor tenanted, but grazed in common by the manorial tenants. 10 Some greens are registered subject to rights of common, and such rights (although seldom exercised) may often have originated as rights to graze on the green and other commons in the manor. In some areas, such as the New Forest, greens continue to be grazed by animals which are depastured on neighbouring commons. 11 Abbot v Weekly (1665) 1 Lev 176, 83 E.R. 357. 12 Section 15: “No town green or village green shall be subject to be inclosed under this Act”.

Chapter 3:

14

An introduction to greens

require the provision of an “Allotment for the Purposes of Exercise and Recreation for the Inhabitants of the Neighbourhood”13. Although not specifically described as greens, many such pieces of allotted land were made under inclosure awards both before and after 1845.

3.2 The registration system 3.2.1 Although the right for local inhabitants to use certain land had long been established, no definitive record of that land existed until the late 1960s. This lack of clarity had been of increasing concern and in 1958 the Royal Commission on Common Land observed that some greens were beset by various dangers, including ‘the effect over-all of indifference and general neglect’14. The Commission concluded that it was in the public interest to preserve greens and, in order to achieve this, recommended that they should be formally recorded on a conclusive register. Their recommendation was that, in order to be recognised as a green, land should be:

in a rural parish any uninclosed open space which is wholly or mainly surrounded by houses or their curtilages and which has been continu-ously and openly used by the inhabitants [for lawful sports and pastimes] during a period of at least twenty years without protest or permission from the owner…or the lord of the manor.15

3.2.2 Many of the Royal Commission’s recommendations, and particularly those in relation to registration, were adopted by the Commons Registration Act 1965 (‘the 1965 Act’). The 1965 Act appointed what are now county councils, metropolitan borough councils and London borough councils as commons registration authoriti-es16 and required them to establish registers of greens for their areas. Greens were defined in much the same way as the Royal Commission had proposed, as:

…land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or on which the inhabitants of any locality have a customary right to indulge in lawful sports and pas-times or on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than twenty years.17

But the 1965 Act departed from the Royal Commission’s view that land should be in a rural parish, uninclosed and surrounded by houses, and made no such stipulation.

Photo 5: Register of town or village greens: Sheldwich, Kent (source: Kent CC)

3.2.3 Applications for the registration of existing greens were invited to be made to registration authorities between 1967 and 1970 (we refer to this initial opportunity for registration as the ‘first wave’). Every application, if properly made, caused the land

13 Section 30. 14 Paragraph 27: see footnote 1. 15 Paragraph 403: see footnote 1. 16 Referred to in the 1965 Act and here as ‘registration authorities’. 17 Section 22(1) of the 1965 Act.

Chapter 3:

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to be provisionally registered as a green. Where there was no objection to a provi-sional registration, the green became finally registered. However, where an objection was made, the provisional registration was referred to a Commons Commissioner who, having undertaken an inquiry into the objection, could confirm the registration as final (either with or without modification) or refuse it. The 1965 Act provided that “no land capable of being registered under [the 1965] Act shall be deemed to be…a town or village green” unless it had been registered by 31 July 197018.

3.2.4 The 1965 Act also provided for the ownership of greens to be recorded in the registers of greens. Where no-one, or two or more persons, claimed ownership of any part of a green, the Commons Commissioner was required to inquire into the ownership. If the Commissioner was not satisfied that any person was the owner, he directed that the local authority (generally the parish council) should be recorded as the owner, and the land became vested in that authority.

3.2.5 In addition to allowing for the registration of greens during the first wave in the late 1960s, the 1965 Act also made provision for new land to be registered where it had become a green after 2 January 197019. Provided it could be demonstrated that after this date a piece of land has been used as of right20 by the inhabitants for lawful sports and pastimes, for at least 20 years, it could be newly recorded in the greens register as a green.

3.2.6 Some minor amendments to the greens registration system were made in the Countryside and Rights of Way Act 2000 (which allowed a claim for registration on the basis of use by a ‘neighbourhood’, a potentially smaller part of the community than hitherto) and the Commons Act 2006 (‘the 2006 Act’, which enabled for the first time voluntary registration of a green by a landowner, and specifically provided for registration of a green up to two years after use had ceased21) but in essence the current greens registration system is based on that set out in 1965 Act.

3.3 The role of the commons registration authority 3.3.1 Since 1970, any application to register a new green has been dealt with by the registration authority22. Registration authorities are required to fulfil a quasi-judicial function in determining whether the criteria set out in the legislation have

18 Section 1(2)(a) of the 1965 Act. The effect of this deeming provision has been a matter of considerable uncertainty. 19 It seems that a green which was capable of being registered under the 1965 Act during the 'first wave', but which was not so registered, ceased to be a green thereafter, and could not be registered after 1970 except where a further 20 years use could be shown. So such greens were not eligible for registration after 1970, until 1990. However, new greens could be registered from 1970 onwards, on the basis of 20 years' use dating from no earlier than 1950. 20 ‘As of right’ means that the land was used without force (e.g. breaking down a fence to gain entry), without secrecy (e.g. only at night or when the owner is known to be absent), and without permission (e.g. under a licence to occupy the land, or where a revocable consent has been given to use the land). 21 Five years was allowed as a transitional provision. 22 For guidance and legislation on applications to register a new green, see: www.defra.gov.uk/rural/protected/greens/.

http://www.defra.gov.uk/rural/protected/greens/

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been met and whether the application for registration can be granted: accordingly, a decision must be taken by the council or a committee of the council23.

3.3.2 The initial steps to be taken by the authority on receipt of an application are set out in regulations24, but there is no prescribed process for resolving the complex questions of fact and law which often arise in such cases. In practice, some deci-sions have been taken after investigations or hearings held by officers or local authority committees, others (usually the more contentious ones) have involved hearings or inquiries which may be presided over by a barrister or independent inspector. Where an inquiry has been held, it remains for the registration authority to grant or reject an application, and its decision can be challenged only on application to the High Court. The law relating to greens is notoriously complex, blending customary law, statute law and common law, and there has been considerable recent litigation arising from registration authorities’ decisions, with twelve high profile cases in the superior courts, of which four in the House of Lords or Supreme Court, in the past decade, and further challenges in the pipeline.

3.4 The effect of registration as a green 3.4.1 Under customary law, land became a green in consequence of long use25 — although in practice, it seems likely that it acquired that status only where it was widely acknowledged as a green or awarded as such under an Inclosure Act (prior to registration under the 1965 Act, few could have afforded to take uncertain action through the courts to prove status and resist encroachment).

3.4.2 Since the 1965 Act, and notwithstanding that land may theoretically satisfy the criteria for registration as a green (because it has been used for lawful sports and pastimes as of right for upwards of twenty years), land does not acquire the status of a green unless and until it is registered. The House of Lords in the Trap Grounds concluded that: “there is no legal basis for treating … land as having acquired village green status by virtue of an earlier period of qualifying use [preceding registration].”26 Only the process of registration under an Act of Parliament has afforded the same comprehensive protection to all land registered as green.

3.4.3 Once a green is registered, registration provides it with the highest degree of protection afforded to any land in England. It becomes a criminal offence to cause any damage to the green or to undertake any act which interrupts the use or enjoy-ment of a green as a place of exercise and recreation. It is also a public nuisance to

23 Or by delegation to an officer. A decision may not be taken by an executive of a local authority: paragraphs 37 and 72 of Part B of Schedule 1 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 (SI 2000/2853) as amended. 24 The Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (SI 2007/457) or, in the registration authority areas pioneering the implementation of Part 1 of the 2006 Act, the Commons Registration (England) Regulations 2008 (SI 2008/1961). 25 Strictly speaking, since ‘time immemorial’, the date for which was fixed as 1189. 26 Oxfordshire County Council v Oxford City Council and Robinson (also referred to as The Trap Grounds), at: www.bailii.org/ew/cases/EWCA/Civ/2005/175.html, paragraph 43, Lord Hoffmann quoting with approval the words of Carnwath LJ in the Court of Appeal, in relation to the effect of registration of land as a green under the 1965 Act.

http://www.bailii.org/ew/cases/EWCA/Civ/2005/175.html

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encroach onto a green (for example, by enclosing part of the green into a garden) or to fence it in27.

3.4.4 These requirements ought to preserve a green in the state it was in at the time it was registered. They prevent any development on a green or any activities being undertaken which may affect how it is used, other than for its better enjoyment. Work which interferes with a registered green may be done only using powers of compulsory purchase, which usually requires equally advantageous land to be given in substitution for the taken land.

3.4.5 Local inhabitants are entitled to use a registered green for all lawful sports and pastimes28. The owner of a green may in theory exclude the wider public from a green. But in practice, the owner may experience insuperable difficulties in identify-ing who qualifies as a ‘local inhabitant’29.

3.4.6 There is no legal distinction between greens registered in the first wave under the 1965 Act, and new greens which have been subsequently registered since 1970. All registered greens are subject to the same protection and rights.

Photo 6: The boat basin, Outwell, Norfolk (application granted)

27 See Defra’s guidance note on Management and protection of registered town and village greens: www.defra.gov.uk/rural/protected/greens/. 28 The Trap Grounds, see footnote 26. 29 In Wisborough Green Parish Council v Fegan, The Times, 6 June 1898, the High Court appeared to accept that the parish council could refuse to allow boys on holiday at a nearby camp to use the green. But most first wave registrations of greens are entirely silent as to the localities associated with them.


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Chapter 4 : Use of the current system

4.1 Level of activity

4.1.1 Registration authorities have determined all applications to register new greens made from 1970 onwards. But no information was systematically collected by Government about successful applications until 2007.

4.1.2 The University of Wales Rural Surveys Research Unit undertook a survey of registration authorities’ registers of greens between 1984 and 1989. The database records 4,332 greens in England, but does not identify those which were registered after 197030. However, very few new greens are thought to have been registered between 1970 and 1988.

4.1.3 Defra commissioned a report in April 2005 from ADAS to review and update existing data on greens, to identify and analyse conflicts of interest occurring in relation to the registration of new greens, and to analyse the problems arising over the use and management of greens including vehicular access and parking31. The report noted that, since 1993, the 114 authorities which responded to the survey in England and Wales had received 380 green applications. Of these, 89 applications had been granted. Assuming that the authorities surveyed are representative of those nationally, the survey suggested around 116 new greens were registered in England between 1993 and 200432.

4.1.4 Defra undertook surveys of all registration authorities in England in October 2007 and October 2009 to gauge the level of registration activity33. The surveys sought information about the numbers of recent applications and determinations. The surveys also asked for information about the cost of public inquiries to determine disputed applications, and for comments on the registration system under the 2006 Act. Approximately two-fifths of authorities responded to each survey, and the results were considered to be reasonably representative of all authorities in England. The survey results were therefore used to estimate activity data for England as a whole, based on an analysis of responses classed by London borough, metropolitan district, non-metropolitan counties, and unitary authorities. The following table shows estimates of activity for England:

30 A database containing some of the survey data is available from the Defra website, at: www.defra.gov.uk/rural/protected/greens/. 31 www.defra.gov.uk/rural/protected/greens/. 32 Approximately one-third of applications that had been received since 1993 were still being processed at the time of the survey, which could well increase the total number of greens registered in consequence of applications made during that period. The figures here must be treated with caution, since the local authorities surveyed may not be representative. 33 A summary of the 2009 survey is available on the Defra website, at: www.defra.gov.uk/rural/protected/greens/.




Chapter 4: Use of the current system

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Table 1: Estimated numbers of greens applications in England, 2003–September 2009

Year

Number of green applications… applications

in year applications

determined§in year

applications granted in year

applications rejected in year

2009 (to end Sep) 139 77 17 79 2008 196 73 26 52 200734 143 44 18 35 2006 103 24 8 16 2005 69 48 30 22 2004 56 33 9 29 2003 56 42 10 30

Values relate to the number of applications received or determined (as the case may be) in the specified year, and do not indicate the outcome relating to applications received in a particular year. Many applica-tions are determined in a later year than the one in which they are received. § Values in this column should equal the sum of the following two columns. However, there are various discrepancies, probably owing to applications considered over several years being assigned to the wrong year.

4.1.5 The data, taken together, suggest that the total number of registered greens in England is likely be around 4,54735, but this figure can only be a rough estimate.

4.1.6 It can be seen that the volume of applications appeared to have significantly risen from around 50–70 per annum in the period 2003–05, to some 100–200 per annum in the period 2006–09, but the volume of applications granted has fluctuated greatly from year to year, between 30 in 2005 and just 8 in 2006. However, the data also show that the number of determinations has, since 2006, generally been well below the level of applications, which in our view reflects increasing congestion within some registration authorities dealing with applications, and a likelihood that the determination of many applications is being deferred as resources permit.

4.1.7 Indeed, there is some specific evidence of clustering of applications: for example, both Kent County Council and Derbyshire County Council had 25 applica-tions awaiting determination at the end of 201036. A continuing high level of applications is likely to worsen the backlog in those authorities already affected, and increase the likelihood of a backlog forming in other authorities.

4.1.8 The survey also sought information about the costs and frequency of public inquiries held by registration authorities:

34 The criteria for application were amended with effect from April 2007, by the implementation of section 15 of the 2006 Act. These data include applications under both the 1965 and 2006 Acts. 35 Comprising 4,332 on greens database, 89 from ADAS report, and total number of greens registered between 2004 and end of Q3 2009 (99). 36 Information supplied by local authorities, December 2010 and on website: https://shareweb.kent.gov.uk/Documents/environment-and-planning/public-rights-of-way/website-register-of-apps.pdf.

https://shareweb.kent.gov.uk/Documents/environment-and-planning/public-rights-of-way/website-register-of-apps.pdf

https://shareweb.kent.gov.uk/Documents/environment-and-planning/public-rights-of-way/website-register-of-apps.pdf

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er 4: Use of the current system

Table 2: Estimated volume and cost of greens application inquiries in England, 2007–2009

Public inquiries public

inquiries inspectors’

fees average

barrister’s fee§

2009 (until 30 Sept) 40 419,000 £13,000 2008 48 1,093,000 £21,000 2007 26 358,000 £15,000

§ average (mean) fee for barristers presiding over public inquiry (some inquiries are presided over by inspectors or local authority solicitors, and the costs are not included in this calculation).

4.2 Study of determined town and village green applications 4.2.1 Defra commissioned research37 from the Countryside and Community Research Institute38 in 2009 to examine a representative sample of applications to register greens which had been either rejected or granted since January 2004. The project examined the character of application sites, and explored whether the sites were earmarked for development in local development plans or subject to planning applications. The research concluded that:

• There was no characteristic of land which was typical to either successful or unsuccessful applications, though applications relating to smaller pieces of land were more likely to be granted.

• There was a wide variety of motivations behind applications and many were triggered by some sort of perceived threat to the site, such as plans for housing or other development, or simply concerns over management of the land. Just under half of applications were directly related in some way to planning appli-cations or allocation of sites for development in the local authority’s local plan — but in the other half, there was no apparent causal link.

• The main reason why applications were rejected was because applicants failed to show that use of the land by the local inhabitants had been ‘as of right’ (i.e. without permission), typically because the use was actually ‘by right’ (i.e. with permission or lawful authority). For example, some applications failed because the land was a park which the public was entitled to use by law.

4.2.2 The application sites in the sample varied widely in size (from 0.1 ha to 114 ha) and types, including: open land on housing estates; playgrounds and parks; unplanned urban, suburban or rural open spaces; brownfield ex-industrial sites; and, agricultural or former agricultural land. There was no dominant pattern of registration of any particular type of land. Broadly speaking, many of the successful applications secured the registration of sites which would fit a popular conception of a green, but

37 A summary of the research, together with the final report, is available at: http://randd.defra.gov.uk/Default.aspx?Menu=Menu&Module=More&Location=None&ProjectID=16581. 38 The CCRI is a partnership between the University of the West of England, Hartpury College, Royal Agricultural College and the University of Gloucestershire: see www.ccri.ac.uk.

http://randd.defra.gov.uk/Default.aspx?Menu=Menu&Module=More&Location=None&ProjectID=16581

http://www.ccri.ac.uk/


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equally, some of those registered — or indeed rejected — could not be more remote from that concept.

4.3 ACRA survey 4.3.1 In parallel to the CCRI research, the Association of Commons Registration Authorities (ACRA)39 undertook a survey of the experience of member registration authorities with greens applications. The results of this survey supported the CCRI research and also concluded that some applications were submitted because of planning applications or the development of local plans.

4.3.2 Just over half of applications considered in the survey failed, and again the most common reason was because use of the land by the local inhabitants was not ‘as of right’. Nearly two-thirds of respondents did not think that the reasons for an application failing could have been identified earlier in the process (so that it could have been sifted out sooner and at less expense).

4.4 Land registered as a green

4.4.1 In the opening words to the judgment of the Court of Appeal in the Trap Grounds case, Lord Justice Carnwath said40:

The traditional village green needs no introduction: "'Village green' — the very words are evocative of great age and tranquil-lity, of turf as rich in hue as it is trim in a setting untouched by time"41 "the traditional village green with its memories of maypole dancing, cricket and warm beer."42 … "In popular language, the village green … is a small area of open land in the middle of a village where the inhabitants can rest or play, the children run round and, archetypally, the village cricket team holds its matches."43

4.4.2 No comprehensive survey has been undertaken of the character or nature of greens since the Rural Surveys Research Unit project in the late 1980s (see para-graph 4.1.2 above), and the connected National Survey of Town and Village Greens — a joint venture between the Unit, the (then) Countryside Commission and the National Federation of Women’s Institutes44. The nature of the registration system under the 1965 Act meant that much land became registered as a green on the initiative of applicants without any mechanism for external scrutiny (provided no objection was made to the provisional registration). Consequently, some such land is 39 ACRA represents the interests of commons registration authorities: see www.acraew.org.uk. 40 Paragraph 1: see footnote 26. 41 Quoted from the report of the Royal Commission: see footnote 1. 42 Quoted from the speech of Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council, at: www.bailii.org/uk/cases/UKHL/1999/28.html. 43 Quoted from The Law of Commons (1988), page 37, paragraph 13.01. 44 Defra commissioned a study of a sample of the Survey returns in 2011: http://randd.defra.gov.uk/Default.aspx?Menu=Menu&Module=More&Location=None&ProjectID=17706.

http://www.acraew.org.uk/

http://www.bailii.org/uk/cases/UKHL/1999/28.html

http://randd.defra.gov.uk/Default.aspx?Menu=Menu&Module=More&Location=None&ProjectID=17706

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very far from the popular perception of the ‘traditional village green’: land registered as green includes for example roadside verges, town squares and car parks. However, it seems that the majority of registrations under the 1965 Act can broadly be classed either as land within a community which has long served the role of unenclosed open space (and generally might be recognised as traditional greens), or as land which was allotted, generally under an inclosure award, as a recreation ground for local use (but which is not always conveniently located45).

4.4.3 The research undertaken by CCRI (see chapter 4.2 above) demonstrates the variety of lands which are the subject of applications to register new greens under the 2006 Act. The research report explains that:

For the purpose of analysis, the determined [green] application sites were categorised as follows: • Small sites within housing estates, mostly owned by local councils or

developers (9 sites, 7 successful and 2 unsuccessful); • Playgrounds and parks (12 sites, 5 successful and 7 unsuccessful); • Unplanned urban or suburban open spaces, including brownfield ex-

industrial sites (7 sites, 3 successful and 4 unsuccessful); • Agricultural (or ex-agricultural) sites which may be owned by farmers

or developers (6 sites, all unsuccessful); • Rural ‘open spaces’ including woods (14 sites, 10 successful and 4

unsuccessful).46

4.4.4 The survey suggests an evolution of the character of greens since the first wave of registration in the 1960s. For example, a number of the sites surveyed related to small parcels within modern housing estates, which had been intentionally left as amenity open space, and which may fulfil the same role in relation to a housing estate as a traditional green fulfils in relation to an older settlement. The survey also recorded a number of sites, classed as rural open spaces, some of which were wholly consistent with the character of sites registered as green in the first wave: e.g. small unenclosed parcels of land, often lacking a known owner, providing both open space and a visual feature within the community.

4.4.5 In contrast, some applications related to unplanned urban open spaces or to green field sites (some of which remained in agricultural use) which lacked the character of traditional greens as being open and unenclosed: while such sites may sometimes be similar in character to greens allotted under inclosure awards and registered during the first wave, they lack the statutory origin in formally granted rights.

4.4.6 Registration does not, in itself, bring with it any certainty of maintenance of the green as suitable for recreation. Registration does not affect ownership of the green, and where the land remains in private ownership, and particularly if the registration has prevented planned development of the site, the owner may be

45 It seems that many allotted greens were never convenient to those who might have wished to use them, and s.149 of the Inclosure Act 1845 provides for allotments to be exchanged for a more convenient site on application to (now) the Secretary of State. 46 See footnote 37: paragraph 4.11.


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disinclined to incur costly expenditure on maintenance for purely public benefit. However, there is some anecdotal evidence that, in such cases, a private owner may subsequently be willing to sell the land to a local authority (such as the parish council) or other public or community organisation in order to relieve the former owner of any responsibilities or liabilities associated with continuing ownership, and in order to allow the new owner to manage the green in the public interest. In such cases, the land may be sold at a price much reduced from its value before the application was made for registration.

4.5 Registration benefits

4.5.1 An application for registration of a green which is granted brings about the following benefits:

• preservation as a green space; • protection from development; • protection of nature conservation and cultural heritage interest; • protection from other uses inconsistent with recreational activity (e.g. intensive

grazing, parking); • a right of access, and right of use, for lawful sports and pastimes (in both

cases, nominally restricted to the local inhabitants).

These benefits are largely non-monetary in character, but they may be realised in, for example, an increase in local property prices, reflecting the value of the green to the community.

4.5.2 These benefits potentially accrue to the local community, rather than only to the applicant for registration and those supporting the application. This does not mean that an application for registration will necessarily be supported by all of the local community47, but if the application is granted and the green is registered, then the community may benefit. It is not necessary that a particular individual wishes (or is able) to enjoy the green for recreational purposes: for example, a local homeowner may benefit from maintaining the value of that home, without any intention to use or even visit the green. However, a proportion of the community may have no interest or intention to use the green — for example, because there is alternative recreational space, which is nearer than or preferred to the green.

4.5.3 As we have seen (see paragraph 4.4.6 above), registration in itself does not bring with it any obligation of maintenance, but it appears that in most cases, regis-tered greens are maintained in a sufficient state consistent with public use, either by the owner, a local authority, or by a local community organisation. In some cases, the owner of land may lose interest in its management following registration, and the same community engagement which inspired the application for registration may also be capable of delivering continuing informal management, at no cost to the owner nor to the local authority.

47 But an application, to be successful, must contain evidence that the claimed land was in use by a ‘significant number’ of local inhabitants.

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4.5.4 In some cases, applications are made to register as a green land which has no known owner: such applications may be made by parish councils or others with a view to long-term protection, not attract objections (or objections may be received only from third parties), and may very often be granted (although the registration authority must still be satisfied that the criteria for registration are met). The effect of registration may be that the parish council, or others, acquire increased confidence to manage the land (notwithstanding the uncertain ownership).48

4.5.5 Even where an application for registration is ultimately unsuccessful, an application (while its determination is pending) may be seen as generating benefits for some people (such as the applicant and supporters of the application), because of:

• temporary protection from development and continuing use for recreation49; • delay to any development; • possible withdrawal of development proposals (i.e. the developer ‘throws in the

towel’); • community engagement to secure registration of a green and oppose devel-

opment (which may deliver an enduring capacity for community involvement).

It is conceivable that the temporary benefits delivered by an ultimately unsuccessful pending application for registration may sometimes be sufficient in themselves to make the application worthwhile — even if the applicant (and those supporting the applicant) have no real expectation of the application being granted, and applications which are perceived to have been made in these circumstances may be seen as vexatious or speculative. However, some landowners respond to applications by excluding access to the land pending determination, and in such cases, the land itself will cease to be available for recreation (although the other benefits described above may endure).

4.5.6 Benefits will seldom accrue to the landowner from registration (but note that landowners wishing to achieve the benefits of registration for the local community can apply to register land as a green voluntarily50).

4.6 Registration costs

4.6.1 The owner of the land will be affected most obviously where an application for registration is granted and the owner had intended changing the use of the land at some stage in the future: the effect of registration of land as a green is likely to constrain future use to the same low-level activities consistent with recreational use

48 Alternatively, a district council or a National Park authority may make a scheme of regulation for the land under Part I of the Commons Act 1899, so as to vest management in that authority. In the absence of a known owner, no person would be able to wield the potential veto over the scheme for which the 1899 Act provides. 49 There is no specific protection for land which is the subject of a pending application for registration as a green, but few landowners appear willing to proceed with plans for development while the application remains undeter-mined, if there remains a risk that the development might have been undertaken on land subsequently registered. 50 Under section 15(8) of the 2006 Act. An application under section 15(8) is relatively simple and inexpensive: see guidance on Voluntary dedication of land as a town or village green: www.defra.gov.uk/rural/protected/greens/.



26

— for example, for extensive or rough grazing, for crops of hay or silage, for golf, or as playing fields — which are consistent with the use (if any) to which the land was put prior to registration (any more intensive use is likely to be incompatible with use of the land for lawful sports and pastimes ‘as of right’). But where the landowner has the necessary permissions to enable development, or reasonable prospects of securing such permissions (e.g. because the land is allocated for housing in the local development framework), or plans to intensify use of the land (e.g. by cultivating land previously used for extensive grazing), registration will present an insuperable impediment.

4.6.2 Even low level use, such as extensive grazing, may become impracticable following registration: for example, a green which frequently is used for walking dogs may be incompatible with the grazing of sheep. Similarly, significant recreational use of the whole area of a green may render it impracticable for cutting hay or silage making, because of disturbance to the grass51. However, as a rule, use of a green by local inhabitants is expected to be compatible with low level use by the owner, and their use must accommodate the owner's where necessary (for example, by not disturbing grass cut for hay, and by not interfering with sports played with the land-owner’s permission).

4.6.3 Where registration of a green prevents the owner’s plans for development of the site, the cost to the owner may be very considerable (in some cases, the owner’s interest in development may have been sold to a developer, in which case, the cost may be borne by both the owner and the developer). Land that has the potential to be subject to an application for registration as a green may be priced at a discount to similar land elsewhere to take account of the possibility of a successful application for registration having an impact on the potential for development. An existing undevel-oped plot of land may have ‘development value’ which is the value above existing current use value associated with the potential for planning permission being granted for development. This may vary from site to site but will be insignificant if the plot becomes registered as a green.

4.6.4 The owner is also likely to incur costs in opposing an application for registra-tion of the land as a green, whether or not the application is likely to succeed. In addition to the owner’s own time, and that of his employees, the owner may well employ legal and other professional advisers to advise on the case against registra-tion, and if the application is referred to a public inquiry, to present the case to the inquiry.

Case study. An application was made in 2007 to register land at Oulton St Michael in Suffolk. A three day inquiry was held to consider the evi-dence. In due course, the inspector recommended that the application

51 In Fitch v Fitch (1797) 2 Esp. 543, 170 E.R. 449, the court held that the rights of both owner and local inhabitants existed together, and the right to lawful sports and pastimes must be exercised fairly and not improperly. The jury found that the defendants had trespassed, because they had entered the green, “trampled down the grass, thrown the hay about, and mixed gravel through it, so as to render it of no value.” It is not apparent from the case whether the damage was intentionally caused by the defendants, or simply a conse-quence of ordinary use of the land for sports and pastimes.

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be refused, and the registration authority accepted the inspector’s rec-ommendation.

One of the two owners of the land, the Norwich Diocesan Board of Fi-nance, incurred legal costs of £49,445 in opposing the application, together with other professional fees of approximately £3,000. Had the application been granted, the Board estimated that the loss of develop-ment value would have been around £300,000.

4.6.5 The courts have concluded that registration of land as a green is not contrary to the Human Rights Act 1998. In Whitmey, the court ruled that the greens registra-tion system was no more than a “control [on] the use of property in accordance with the general interest”52, while in the Trap Grounds, the House of Lords found that the system was justified in human rights terms because: “first, the owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation and, secondly, the system of registration in the 1965 Act was introduced to preserve open spaces in the public interest.”53

4.6.6 An application for registration also imposes costs on the registration authority which is responsible for determining the application. The 2009 survey (see chapter 4.1 above) recorded 17 public inquiries in 2009 presided over by a barrister, at an average cost of about £13,000. The total legal fees incurred in the first three quarters of 2009 by responding authorities solely in relation to the 21 public inquiries commis-sioned by them were approximately £¼ million; total legal fees in 2008 for public inquiries held by all authorities in England are estimated at over £1 million. These figures do not include the cost to the registration authority itself, in officers’ and members’ time, in processing the application.

4.6.7 An application for registration may also impose costs on third parties, including:

• those who support or oppose the development or the registration application — such as supporters of the application, who may be required to attend a public inquiry during working hours to give evidence of use;

• those who have an interest in development of the land — for example, a body which is interested in acquiring part of a completed development (such as a business proposing to lease office space, or a housing association proposing to acquire new homes), and which must make alternative arrangements (which may be less satisfactory);

• the local community, where a registration application causes previously toler-ated use of the land to be withdrawn by the owner — particularly if the application is rejected but public access is not subsequently restored;

• the wider community — especially where an application which is granted, or which causes significant delay, affects a development undertaken in the public

52 R (on the application of Whitmey) v Commons Commissioners: www.bailii.org/ew/cases/EWCA/Civ/2004/951.html. 53 Paragraph 59, per Lord Hoffmann: see footnote 26.

http://www.bailii.org/ew/cases/EWCA/Civ/2004/951.html


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interest, such as a health centre or affordable housing, so that alternative ar-rangements must be made (which may be less satisfactory).

4.6.8 Finally, the applicant for registration may incur costs in pursuing the applica-tion, measured in terms of the applicant’s own time and that of any advisers, the applicant’s out-of-pocket expenses, and the costs of any legal advice which is sought. It is perhaps unwise to assume that the applicant’s costs are willingly incurred: few applicants are likely to have previous direct experience of an applica-tion, and the commitment of time and money to an application may prove to be very much higher than originally expected. Moreover, if the application is unsuccessful, the rewards may be minimal.

Case study. An application was made by Keep Croxley Green Group to register Long Valley Wood and the Buddleia Walk at Croxley Green as a green in 2004. Much time was spent gathering information to support the application: “We obtained an extra 500 evidence forms. …This entailed door to door knocking, explanation and correlation over a 3 week period.” A five day public inquiry in March 2007 involved 1,200 pages of evi-dence. Preparation for the inquiry required “2 weeks (evenings) of adver-tising event around the locality, preparing witness providers and organising order of attendance”. Financial costs to the Group were “rela-tively small. £8,000 for barrister on fixed term basis. Solicitor was a local person who provided services at no charge. …many hours in chasing up registration authority clerks and their solicitors, dealing with enquiries from local people (immeasurable), responding to local and national press, radio interviews and even a slot on the ITV 6 O'clock Show.”.54

Photo 7: Land at Vicarage Rough, Clun Glebe, Shropshire (application rejected)

54 Source: Keep Croxley Green Group.

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Chapter 5 : Proposals for change

5.1 Introduction to the proposals

5.1.1 Taking account of the plans for the new Local Green Spaces Designation, we have proposed a range of measures for reforms to the greens registration system. This chapter presents these proposals, grouped into four themes:

• Do nothing — make no changes to the current system. • Refining the registration system — revising key parts of the system, by

strengthening qualifying criteria to give greater protection to landowners and ensuring applications for traditional sites stand the best chance of being ap-proved.

• Taking account of the planning system in shaping local places — increas-ing coherence between the greens registration and planning systems to reduce the ability for green applications to disrupt the planning process.

• Contributing to costs — introducing fees to help with the costs falling on local authorities.

5.1.2 For each proposal, we have set out the context, described how the proposal would work, and looked at the likely impacts. We have also stated whether each proposal would require any change to primary legislation (i.e. a new Act of Parlia-ment), or can be achieved through just secondary legislation (i.e. new regulations made under the 2006 Act).

5.1.3 We have analysed the proposals in isolation — that is, we have looked at the impact of each proposal as if it was adopted on its own — and taken together, as a package in accordance with our plans for implementation: see chapter 5.8 below.

Do nothing

5.2 No change Context 5.2.1 If the Government takes no action to promote changes to the existing greens registration system, applications may continue to be made and determined on the present criteria. In this context, ‘no change’ means no changes in either primary or secondary legislation (i.e. no amending Act of Parliament or regulations).

About the option 5.2.2 This option — no change — assumes that the existing registration system remains unchanged. Other proposals set out in this chapter are measured against the ‘do nothing’ option as the baseline position. As we have explained in chapter 1.3 above, the Government does not believe that ‘no change’ is an appropriate response to the problems which have been identified. But it is right that proposals are meas-ured against a baseline position.

5.2.3 This option would not require any change to primary or secondary legislation.

Chapter 5: Proposals for change

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How it would work 5.2.4 This option leaves the existing registration system unchanged (see Chapter 4 above for an explanation of the present system).

Impact 5.2.5 For the benefits and costs associated with the present greens registration system, see Chapter 4 above.

No changeAdvantages Disadvantages

• see chapter 4.5 • wealth of guidance and case law

available to authorities and other parties, who are familiar with exist-ing system

• see chapter 4.6

Questions

Question 1. Taking account of the Government’s plans for the new Local Green Spaces designation, do you agree that the problems identified with the present greens registration system are sufficient to justify reform — so that the ‘no change’ option should be rejected?

Refining the registration system

5.3 Streamline sifting of applications Context 5.3.1 An application for registration of a green is initially considered by an officer of the registration authority, who considers whether the application is properly made55. Evidence suggests that few applications are rejected outright at this early stage. The authority may conclude that the applicant’s case is weak (e.g. lacking in evidence of use, or doubt whether the use was ‘as of right’), but consider that the applicant’s case must be properly tested, and the applicant given an opportunity to strengthen that case, before a determination is made. That may often entail holding a hearing or inquiry into the evidence and receiving legal submissions, at substantial cost to all the parties involved, and incurring significant delay.

About the proposal 5.3.2 The purpose of this proposal is to ensure that weak or vexatious applications may be sifted out by the registration authority at an early stage: this will minimise the 55 In the seven local authority areas pioneering implementation of Part 1 of the 2006 Act, the registration authority is required to consider whether the application is duly made. Elsewhere, the authority must consider, after ‘preliminary consideration’, whether the application is duly made (but must first give the applicant an opportunity to put the application in order, if practicable).

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er 5: Proposals for change

delay to all parties affected by a pending application, and will also minimise the costs to the authority and others in dealing with it.

5.3.3 This proposal would introduce an initial sifting stage for applications. It would impose a duty on the registration authority, on receiving a duly made application, to invite initial comments from the landowner before considering whether the application is capable of being granted. The authority would be able to ask the applicant to put right manifest defects in the application before reaching a decision, but would then be empowered to reject the application, or accept it for full consideration, on the basis of the information supplied.

5.3.4 Registration authorities already have a power to reject applications which are not properly made, but (except in certain circumstances) have a duty to give the applicant an opportunity to put right defects in the application. The proposal as-sumes that, while it is right that an applicant should be given an opportunity to correct an application which is obviously defective (e.g. because it has not been signed), the onus should be on the applicant to submit an application which contains all the necessary supporting evidence to make the case speak for itself. This is because applicants have two years to submit an application for registration after a challenge to the use of the land by local people, and this period of time is sufficient to allow poten-tial applicants to assemble a robust application. There is, therefore, no need for applicants to submit a ‘holding’ application, and it is fair for the authority to be able to assess each application, at an early stage, on its merits.

5.3.5 This proposal would require new secondary legislation, by amending existing regulations (but see paragraph 5.3.7 below). In addition, in order to assist registra-tion authorities in reviewing applications at an early stage, irrespective of changes to legislation, we have recently improved guidance to authorities on the interpretation of the registration criteria in the 2006 Act56.

How it would work 5.3.6 If, having received an application, the registration authority considers (having regard to the application itself and the landowner’s comments) that there is sufficient relevant evidence in support of the application then it should be properly scrutinised in the usual way. If, however, the application lacks sufficient evidence, or it is clear that the application cannot meet the criteria for registration, then the authority may reject the application. As now, there would be no appeal from the authority’s deci-sion, but either party could seek judicial review of the authority’s decision. We would not expect the authority to reject an application at this stage where there was merely doubt that the application could be granted, but only where it were incapable of being granted owing to insufficient evidence or failure to adhere to the criteria for registra-tion.

5.3.7 Although an improved application could be submitted at a later date, it may be necessary to confer a power on registration authorities to refuse repeated applica-tions to avoid applicants reapplying continually to register the same land — but this

56 Guidance to Commons Registration Authorities and the Planning Inspectorate for the pioneer implementation: www.defra.gov.uk/rural/protected/commons/registration/.

http://www.defra.gov.uk/rural/protected/commons/registration/


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may require new primary legislation, and the introduction of application fees may act as a deterrent (see chapter 5.7 below).

Impact 5.3.8 This proposal would improve the efficiency of the application process, allowing the earlier rejection of applications which are incapable of being granted.

Streamline sifting of applicationsAdvantages Disadvantages

• reduced costs to all parties in dealing with poor quality applica-tions

• greater efficiency in the process — fewer delays from poor quality applications enabling authorities to focus on those which remain

• determination delivered sooner

• applications may be rejected for insuffi-cient evidence even though capable of being put right

• may fail to discourage applications being repeated at a later date leading to further delays

Questions

Question 2. Do you support this proposal to streamline the initial sifting of applications?

Question 3. Do you agree that an initial determination should be made by the registration authority after inviting initial comments from the owner of the land affected by the application?

5.4 Declarations by landowners

Context 5.4.1 The Common Land Policy Statement 2002 set out the Government's plans for legislation in relation to common land and greens. It proposed: "introducing a formal mechanism by which landowners could clearly indicate that, although use of the land may continue for the time being, the nature of the use has ceased to meet the criteria for registration as a town or village green." However, it was not possible to address these issues in the 2006 Act.

5.4.2 Under section 31(6) of the Highways Act 1980, a landowner may deposit a map and statement with the highway authority, showing admitted public paths, and may then make a declaration that the landowner has no intention to allow any other part of the land to become subject to a public right of way. Such a declaration, renewed every ten years, is generally effective in rebutting any claim to a right of way on the landowner's land acquired by long use during the period when the declaration is in effect.

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About the proposal 5.4.3 This proposal would make similar provision in relation to greens. A land-owner would be able to deposit a map of the land, and make a declaration, to be renewed every ten years, that any use of that land for the purposes of sports and pastimes is with the landowner’s permission and is therefore not to be treated as done 'as of right'. Legislation would provide that such a declaration would counter any evidence of use of a claimed green, as of right, during the period while the declaration remained in effect.

5.4.4 This proposal would require new primary legislation.

How it would work 5.4.5 A deposit and declaration made by a landowner in relation to land would be treated as an interruption to any use of the land for lawful sports and pastimes as of right. No claim to register land as a green could relate to any period of time during which a declaration was in force.

5.4.6 A declaration might be made in relation to land which had already been used, or was alleged to have been used, for 20 years for lawful sports and pastimes. In such a case, a claim to register the land as a green, on the basis of use over a period of at least 20 years prior to the date of the declaration, would have to be brought within two years of that date.

Example: Eastwell Civic Society makes an application in 2036 to register Church Field as a green, on the basis of 24 years' use as of right since 2012, continuing up until the date of the application. However, the land-owner, Glebe Investments Ltd, deposited with the registration authority a map, and a declaration, in relation to the land, in 2035, in accordance with legislation giving effect to this proposal. The application is neverthe-less granted, because the registration authority concluded that use of the land for 20 years between 2012 and 2035 (when the deposit and declara-tion was made) was as of right, and the application had been made within two years of the date of the deposit and declaration.

5.4.7 Local communities should be made aware that landowners have made a deposit and declaration in relation to land within their area, so that they know that the declaration has triggered the two year period of grace within which an application for registration can be made57. Registration authorities would be required to keep a register of deposited maps, published on their websites, and to make declarations and maps available for inspection. Copies of declarations and maps would be sent to the parish council or chairman of the parish meeting, which would be expected to consider whether the declaration related to land in regular use for recreation.

5.4.8 Registration authorities would be able to charge a fee to landowners to cover the costs of administration.

57 Under section 15 of the 2006 Act, an application to register a green may be made while use is continuing (subsection (2)) or within two years of the cessation of use (subsection (3)). A transitional provision in subsection (4) enables application within five years of a cessation of use occurring before 6 April 2007.


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Impact 5.4.9 We expect that the facility to make a deposit and declaration would be quickly adopted by many landowners, particularly where the land is professionally managed, or where landowners are members of representative organisations and follow the guidance which such organisations would be expected to offer their members. In some cases, deposits and declarations would relate to land where 20 years’ use for lawful sports and pastimes had already been acquired, and landowners might (by making a declaration) stimulate a latent claim to register the land as a green: however, it is likely that any such claim would merely have been brought forward by the landowner’s action.

5.4.10 In relation to land where there is no latent claim to registration as a green, we expect that increasing numbers of landowners, and particularly owners of potential development sites, would make a deposit and declaration to secure long term protection of their land from claims to registration. This proposal may also encourage landowners to permit or tolerate recreational use of their land (whether occasional dog walking or regular permissive use by the local community), confident that such use could not (while a deposit and declaration remained in force) give rise to a claim to registration as a green. Without such protection there is the potential for landown-ers deciding they have no option but to prevent access to land at all times in order to negate the risk of a greens application at some point in the future (unless the land were already subject to legal rights of access for recreation).

5.4.11 However, landowners’ initial steps to take advantage of legislation giving effect to this proposal, by making deposits and declarations, could trigger a wave of new greens applications by persons who see the landowners’ actions as a challenge to existing use of the land, and an impetus to secure registration of the land within the period of grace of two years. Registration authorities may initially need to deal with a temporary increase in the number of greens applications while also receiving depos-its and declarations from landowners: however, their costs in respect of the latter would be covered by the fee payable with a declaration (expected to be £20–100).

Declarations by landownersAdvantages Disadvantages

• shield available to any landowner • affected land identifiable from

publicly available registers • landowners and some access

interests already familiar with similar mechanism available to shield against rights of way claims

• straightforward test whether land subject to deposit

• landowners likely to be more willing to allow continued recreational use of land

• delayed impact: deposit has no effect on potential greens applications for at least two years

• could trigger new greens applications in response to perceived ‘challenge’

• users of land may be unaware of deposit, and that application must be brought within two years

• primarily benefits well-informed or professionally advised landowners

• excludes land from registration regardless of quality of use

• small administrative burden on registra-

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tion authority, recovered from landowner • fee must be paid by landowner to protect

interests

Questions

Question 4. Do you support this proposal to enable landowners to make a deposit of a map and a declaration to secure protection against future applications to register land as a green? Question 5. Should landowners or registration authorities be required to take additional steps to publicise a declaration, to ensure that potential users know that they have limited time to make an application to register the land as a green? If so, what steps do you propose?

5.5 Character Context 5.5.1 In popular perception (see paragraph 4.4.1 above), a green is found at the core of towns and villages: comprising some green space (invariably mainly down to grass) crossed or bounded by roads (often including the main street), furnished with benches, litter bins, perhaps a letter box and telephone kiosk, and a few venerable trees, and on to which face the church, the pub and perhaps a shop. The green is surrounded by houses, many of them of some considerable age, which either face onto the green (and perhaps can be reached only by crossing over part of the green) or onto roads which bound the perimeter of the green.

5.5.2 Most such greens were registered in the first wave of registration under the 1965 Act. Yet many applications to register greens today feature land which bears little relation to the popular perception: sites surveyed by the CCRI included former railway sidings, woodland, scrub, fields and rough grazing, but also public parks and playing fields. Other sites included in registration applications include a disused railway line, a beach, a churchyard, part of a golf course, former council offices, and seafront public gardens.

5.5.3 The report of the Royal Commission on Common Land, which paved the way for the 1965 Act, proposed that provision should be made for the registration of “any uninclosed open space which is wholly or mainly surrounded by houses or their curtilages” located in a rural parish58. But the 1965 Act omitted any definition of the character of a green, nor has one been adopted since.

About the proposal 5.5.4 Some assert that the purpose of registration is to enable protection to be conferred on any valued open space on the basis of long use, and that a test of character would be inappropriate. They would allow for the registration and protec-tion of land whatever its character, solely on the basis of 20 years' use as of right. In 58 Paragraph 403: see footnote 1.


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the Trap Grounds case, the House of Lords, in a majority opinion, declined to rule that land could be registered as a green only if it passed some test of character. But Lord Scott, in a dissenting opinion, proposed that 'something more' was needed than a customary right of recreation:

'something more' would have been a quality in the land in question that would have accorded with the normal understanding of the nature of a town or village green, namely, an area of land, consisting mainly of grass, either in or in reasonable proximity to a town or village and suit-able for use by the local inhabitants for normal recreational activities.59

5.5.5 We have considered whether land which is registered as a green should be subject to a test of character such as that proposed by the Royal Commission. If the purpose of registration is simply to protect traditional greens, then such a test could properly be adopted.

5.5.6 Registration of land as a green confers permanent rights of use for recreation by the local inhabitants. It also confers considerable statutory protection from development or interference (see chapter 3.4 above). It is arguable that such attributes should attach to land only in the most exceptional circumstances, where it is plain that not only are the existing statutory criteria for registration satisfied by virtue of long use as of right, but the character of the land is such that it is an intrinsic part of the fabric of the community: a centrepiece, which merits special recognition and special protection in its own right.

5.5.7 This proposal adopts a test of character: it would mean that a green could not be registered unless it can be shown that the land is open and unenclosed in charac-ter, and recognisably similar to the popular perception of a traditional green. Although most (but not all) traditional greens are thought to have been registered under the 1965 Act, many open spaces having essentially the same character as traditional greens — including play areas and open spaces in post-war housing estates — would also be likely to pass a character test.


How it would work 5.5.9 A test of character could be added to the existing tests in the 2006 Act. Registration would be afforded only to land which was:

• unenclosed: meaning both that the land is not substantially bounded by fences or other physical features erected with the purpose of discouraging or deterring access to and egress from the land from or to surrounding land;

• open: meaning that the land is not substantially covered by scrub, trees or other dense vegetation which would interfere with the use of the land (as op-posed to particular paths) for most sports and pastimes;

• uncultivated: whether at the time of application for registration or at any time in the 20 years preceding the application.

59 Paragraph 77: see footnote 26.

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Where land contained in an application clearly failed the test, the registration author-ity would be able to reject the application at the initial sift proposed in chapter 5.3 above.

5.5.10 Land which is bounded by public roads, or by dwellings which are built to overlook the land (so that the principal means of access is to and from the land) would qualify as unenclosed, whereas land which is enclosed by fencing, or where tall fencing divides the land from neighbouring properties, would not. Land would not be disqualified merely because it was bounded on one side by, for example, a railway line or major road, and separated from it by a fence, provided that the character test were met in respect of the substantial part of the boundary.

5.5.11 The test proposed in paragraph 5.5.9 above might be regarded as appropri-ate but not sufficient: for example, a test could also consider some of the following additional factors as underpinning traditional character:

• location (central to the heart of a settlement or community); • commemorative structures important to the community (e.g. war memorial,

jubilee or millennium structures); • functional structures relevant to community (e.g. bus shelter, notice board,

water fountain, drinking trough, signposts); • shape (traditional greens tend to be irregular rather than rectilinear); • evidence of former use for grazing (e.g. pond, animal pound); • historic characteristics (e.g. evidence of old use, old trees).

We ask in Question 7. below whether the character test should include additional elements such as these.

Impact 5.5.12 A character test would restrict the registration of new greens to sites which are popularly perceived to be traditional in character, or which, although modern in character (such as play areas on post-war housing estates) are of a similar, open nature to traditional greens. Such a test might increase general public support for new greens, because they would be popularly perceived to be greens in character, and therefore worthy of special protection. Moreover, the test would ensure that sites which achieved registration would generally be the focal point of the community — open to local roads, easily accessible, free of encroaching scrub, and visibly the pride of that community.

5.5.13 A character test would prevent the registration of sites which were enclosed or otherwise not the focal point of their community: for example, fields, post-industrial land, public parks and playing fields would be likely to fail the character test (although each claim would need to be assessed on its merits).

5.5.14 However, a character test could be difficult to apply: Lord Hoffmann said, in The Trap Grounds, that “To say that the registration authority will recognise a village green when it sees one seems inadequate.”60 A character test should be reasonably

60 Paragraph 39: see footnote 26.


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certain in its application to land. Guidance would need to explain how the test should be applied.

CharacterAdvantages Disadvantages

• restores registration to traditional perception of greens, so as to maintain public support

• confines protection to open, easily accessible sites, typically focal point of community

• reduces non-conforming applica-tions, so freeing up registration authorities to determine applica-tions for sites which meet test

• clearly non-conforming applications (e.g. public parks) can be quickly rejected

• introduces further technical test • excludes all non-conforming land from

registration regardless of other factors

Questions

Question 6. Do you support a proposal to introduce a character test to ensure that greens accord with the popularly held traditional character of such areas?

Question 7. Do you agree with the character test in paragraph 5.5.9 above i.e. that land must be open and unenclosed in character? Do you support the adop-tion of additional criteria such as those in paragraph 5.5.11 above?

Taking account of the planning system in shaping local places

5.6 Integration with local and neighbourhood planning Context 5.6.1 The greens registration system works entirely independently of the planning system. There is increasing concern that it is being used in some parts of the country as a mechanism to prevent development proposed and approved through the planning system.

5.6.2 If a green registration application is successful, the land becomes perma-nently protected, and cannot be developed, even if there is existing planning permission for development. However, in practice development will not normally begin on the land from the time that the registration application is made until it is decided — even if it is ultimately unsuccessful. An application can take a long time to reach a determination (in some cases, several years), particularly if the registration authority has several applications in train at the same time. Some applications are

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submitted after planning permission for development has been granted, as a ‘last ditch’ effort to override the planning authority’s decision: in such cases, the applica-tion may substantially delay development even if there is little chance of the land being successfully registered.

About the proposal 5.6.3 This proposal would exclude any land proposed for development through a planning application, or for which there were an extant planning permission in place, from being included in an application to register the land as a green. It would also exclude land proposed or designated for development or protected by the Local Green Spaces designation (see chapter 1.2 above) in a neighbourhood or local plan61, which had been adopted or published for consultation. And it would apply in the same way to an order granting development consent made by the Secretary of State, in relation to major infrastructure projects62.

5.6.4 The local community is fully involved in these decisions about the use of land. Planning applications are widely publicised by local planning authorities in line with statutory requirements63 in order to enable the community to participate in the decision whether the development should be granted planning permission.

5.6.5 Similarly, local plans are prepared in consultation with the local community64, while neighbourhood plans will be the subject of local referendums. Local planning authorities are required to prepare a statement of community involvement which explains the process for community involvement in both the determination of planning applications, and the preparation of the plan for the area.


How it would work 5.6.7 An application to register a green could not be made in relation to any land in respect of which there was an application for full or outline planning permission, which had been received and validated or on which there was statutory pre-application consultation65. However, where the green application had been submit-ted before any of these steps had begun, then it would proceed to determination in the usual way. Furthermore, no application to register a green could be made during the determination of any appeal against the refusal of planning permission. However, an application could be made where the period for lodging an appeal against the refusal of permission had lapsed and no appeal had been made or on expiry of the period allowed for legal challenge.

61 By 'neighbourhood plan', we mean either a 'neighbourhood development plan' or a 'neighbourhood develop-ment order', which are proposed new neighbourhood planning tools, included in the Localism Bill. And by 'local plan', we mean any development plan document produced by a local planning authority. 62 The Localism Bill proposes to transfer the functions of the Infrastructure Planning Commission to the Planning Inspectorate acting on behalf of the Secretary of State, in relation to major infrastructure projects. 63 See, generally, Part 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184). 64 The Town and Country Planning (Local Development) (England) Regulations 2004 (SI 2004/2204), as amended. 65 By ‘statutory pre-application consultation’, we mean the planned new requirement for certain developers to consult communities prior to publishing a planning application, which is included in the Localism Bill.


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5.6.8 In the same way, an application to register a green could not be made in relation to any land in respect of which a planning permission had been granted, until either the development was complete (in which case, the application could seek the registration only of any remaining undeveloped land in respect of which the statutory criteria were met), or the planning permission had expired.

5.6.9 Nor could an application to register a green be made in relation to any land designated for development or protected by the Local Green Spaces Designation in a local plan which had been adopted by the local planning authority, or which was in a draft local plan which had been published for consultation. The same principles would apply to land designated for development or protected by the Local Green Spaces designation in a neighbourhood plan envisaged by the Localism Bill, either at consultation stage or after formal adoption.

5.6.10 Where a proposal for development were made under the planned Community Right to Build66, the same principles would apply and the land would be protected from an application for registration in the same way.

5.6.11 Where land becomes protected in this way from an application to register a green, provision would be required so that an application could be made after the protection ceases (e.g. when the planning permission expires) notwithstanding that the claimed use may have ceased more than two years before the date of the application. This is because the landowner may also have taken steps to prevent use of the land after having sought planning permission, without the possibility of any person being empowered to make a greens application within two years after cessation of use (as required by section 15(3) of the 2006 Act).

Impact 5.6.12 This proposal places emphasis on the local planning authority and communi-ties to consider a site’s future through the development planning process. It would help reconcile conflict between the development of land, and applications to register the land as a green, particularly where such applications are made once the planning process is already underway.

5.6.13 This proposal means that action could not be taken to bypass the planning process by seeking to register land as a green and is consistent with localism: some pieces of land which are highly valued by some local people and which would currently meet the test for greens registration would not be eligible for registration, but their future use — for development or green space — would be determined by the community in ‘the round’.

Integration with local and neighbourhood planningAdvantages Disadvantages

• ensures proposals in local or neighbourhood plans are not de-

• may encourage landowners to submit speculative application for planning

66 The Community Right to Build is proposed under the Localism Bill, and will give certain groups of local people the power to deliver small scale development that their local community wants under a more streamlined arrangement.

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railed • puts the consideration of a site’s

future in the hands of local people and their council

• allows the future needs of a neighbourhood and wider commu-nity to be considered in the round

• protects proposed development once an application for planning permission or statutory pre-application consultation has begun in advance of any green application

• helps protect developers from potentially considerable costs associated with having to abandon worked up schemes

• supports delivery of housing, other sustainable development and Community Right to Build

• applications merely to delay development could not be made

permission • may encourage speculative greens

application to avoid being pipped to the post by a planning application

• limited risk that a landowner might move straight to the formal stages of a planning application and not engage early with local communities — so as to avoid inspiring a blocking greens application

• some sites, which otherwise meet the criteria for registration, may be ineligible for registration because of preferred alternative uses approved by the planning system

Question 8. Do you support the proposal which would rule out making a greens registration application where a site was designated for development in a proposed or adopted local or neighbourhood plan?

Question 9. Do you support the proposal that a greens registration application could not be made after an application for planning permission had been submit-ted in respect of a site, or on which there was statutory pre-application consultation, until planning permission had itself been refused or implemented, or had expired?

Contributing to costs

5.7 Charging fees

Context 5.7.1 At present there is no fee for applications to register land as a green. The role of the registration authority in determining applications is quasi-judicial. It acts as a tribunal in order to determine whether the application and its supporting evidence meet the criteria for registration set out in the 2006 Act and in regulations. In order to fulfil this function the registration authority must devote a substantial amount of time and resources to process the application to completion.

5.7.2 It is not uncommon for registration authorities to hold a public inquiry in order to reach a decision on a contentious or complex application. The average cost of a


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public inquiry presided over by a barrister has been estimated at £13,00067, which is borne by the registration authority, but this does not take into account the cost of officers’ time in considering the application. The high cost of determining applications and the backlog of applications it has created within some registration authorities is one of the chief concerns arising from the present registration system.

5.7.3 In implementing Part 1 of the 2006 Act: applications which are expected to promote the public interest are free of charge, whereas those which promote a private interest are subject to a charge set by the registration authority68. However, the exceptional nature of applications to register greens demands that recognition is given to the very high costs associated with determining an application. We suggest that this can best be done by expecting applicants to demonstrate their commitment to the application by contributing a small part of the total costs of the application.

About the proposal 5.7.4 In order to address this problem, this proposal provides that the applicant for registration of a green should pay a fee, where the fee is set by the registration authority subject to a ceiling prescribed in regulations. It is not intended that the fee should allow for full cost recovery; to do so would effectively deter most applications. However the fee should represent a sufficient demonstration of commitment to the application, realistically achievable by the users contributing jointly, and it is sug-gested that the ceiling be set at £1,000.

5.7.5 We recognise that fees would in some cases prevent worthwhile applications coming forward. In order to mitigate such concerns an alternative would require the payment of a fee which is refundable if the application were granted.

5.7.6 This proposal would require new secondary legislation, by amending regula-tions. Provision for a refundable fee may require new primary legislation.

How it would work 5.7.7 Submission of an application to the registration authority would require to be accompanied by a fee which is set by the registration authority. The registration authority would refuse to consider any application which did not include a fee, and would have no discretion to dispense with the payment of a fee in any particular case (although it could decide to set a fee lower than £1,000 for all applications).

5.7.8 In the case of a refundable fee, the fee would be refunded to the applicant were the application granted.

5.7.9 Fees would be retained by the registration authority.

Impact 5.7.10 This proposal is principally intended to discourage an applicant from submit-ting a speculative application which stands little chance of success. This would reduce the number of applications thereby enabling registration authorities to concen-

67 Survey of town or village green registration activity: see Chapter 4.2. 68 Part 1 is at present implemented only in seven pioneer registration authority areas: see www.defra.gov.uk/rural/protected/commons/registration/. For the fees in relation to Part 1 applications, see Schedule 5 to the Commons Registration (England) Regulations 2008 (SI 2008/1961), available via the website.

http://www.defra.gov.uk/rural/protected/commons/registration/

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trate on speeding up decision making on fewer, better quality applications. This would also avoid the potential for delay to development, or perhaps from discourag-ing the developer from proceeding with the application, given the length of time taken to reach decisions.

Charging feesAdvantages Disadvantages

• enables authorities to recoup some of their costs

• likely to deter spurious applications which have little chance of success

• likely to deter some worthwhile applica-tions

• fees could not realistically be set at a level which would enable full cost recov-ery

• does not contribute to other parties’ costs

Charging fees, refunded if application is granted Advantages Disadvantages

• enables authorities to recoup some of their costs where applications rejected

• likely to deter spurious applications which have little chance of success

• encourages applications in accor-dance with criteria

• less likely to deter worthwhile applications with reasonable chance of success

• no known precedent, so approach is untested and uncertain (but similar to principle for costs of court action)

• makes no contribution to costs of registra-tion authority where application is granted

• perception that registration authority predisposed to refuse application in order to retain fee

Questions

Question 10. Do you support this proposal to charge a fee for applications?

Question 11. If so, do you support the proposal for refunding the fee where an application is granted?

Question 12. Do you agree that the fee should be determined by the registration authority and that a ceiling should be set at £1,000?

5.8 Cumulative impact 5.8.1 Our analysis in this chapter focuses on the impact which each proposal would have if it were implemented in isolation. But, as we explain (in paragraph 1.4.3 above), we intend that all these proposals should be adopted as a package, because they will all, individually and collectively, help deliver our objectives for the review. What would be the impact of implementing this package?


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5.8.2 Each proposal, implemented in isolation, would be likely to affect both the number and type of applications made to register greens. But the impact of the proposals implemented as a package will be more complex than simply the sum of the impacts of each proposal in isolation.

Example: consider an application which (in the absence of any reform) might be made in relation to a development site which has the benefit of a planning permission: the application meets the current criteria, and is granted, and the development cannot go ahead.

Now consider the possible position after the reforms are implemented: the application is forestalled by a declaration previously made by the landowner relating to the development site (so that part of the 20 years’ use claimed in the application is discounted because of the declaration): the landowner is particularly likely to make such a declaration, in an effort to protect the development value of the site. But the application would also fail because of the precedence of a planning permission already granted.

5.8.3 We consider the likely impact of proposals to enable declarations, to adopt a test of character, and to improve integration with local and neighbourhood planning, in reducing the number of registration applications (and the number of applications which are granted): this effect will enable local authorities to focus limited resources on determining those applications which remain, and which are more likely to be successful. But it can be seen that each application may be affected by two or more proposals, so any assessment of overall impact must avoid double counting.

5.8.4 Table 3 on page 45 shows the inter-relationship of the impacts of the propos-als in this consultation paper. Further explanation of the impacts is available in the impact assessment published with this consultation.

Chapter 5: P

roposals for change

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Table 3: Collective impacts of proposals

Extent of overlap

Streamline sifting of applications

Declarations by landowners

Character Integration with local and

neighbourhood planning

Charging fees

Streamline sifting of applications

Declarations by landowners

Low overlap: some applications may be

deterred by likeli-hood of early

rejection, which would otherwise fail one or more of these

tests

Character Moderate overlap: some declarations may relate to sites

which would fail character test

Integration with local and neighbourhood planning

Low overlap: few declarations likely

where planning process is underway

Moderate overlap: some sites protected by planning prece-

dence would anyway fail character test

Charging fees High overlap: many applications may be

deterred by fees, which would otherwise be

deterred by likeli-hood of early

rejection

Moderate overlap: some applications will be deterred by fees, which would otherwise fail one or more of these tests

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5.8.5 The collective impact of these proposals will be to focus applications on sites which are most likely to be successful, to increase landowners’ powers to safeguard their land from registration (particularly where development is already in train), to ensure that sites that remain eligible for registration are likely to conform to popular perception of a green, and to increase the efficiency of the registration process by both discouraging speculative applications and swiftly rejecting those which persist (thereby helping to unblock the log jam for those applications which have the poten-tial to be granted). Only a package of measures will help deliver all our objectives for reform: each proposal may have some effect on one or more of those objectives, but is unlikely to be effective in securing improvements against all three — indeed, some proposals may have a negative impact against an objective, but, implemented as part of a package, deliver significant and worthwhile gains against the remaining objec-tives.

5.8.6 Taking the proposals as a package, we expect the proposal for a character test to be most effective in enabling high quality green space to be registered; we expect the integration with local and neighbourhood planning proposal to be most effective in enabling legitimate development to occur where it is most appropriate; and we expect that all the proposals will lower local authorities’ costs in dealing with applications, through a lower volume of activity, and enable them to focus on provid-ing a better service to the fewer, higher quality applications which remain. Further analysis of these relationships is given in the impact assessment (see Table 1 on page 15 of the impact assessment).

5.8.7 We also expect that the Government’s commitment to introduce a new designation for green space through the planning system, outlined in chapter 1.2 above, will ensure that communities can continue to protect valued green spaces through the planning system, even where registration as a green is no longer possi-ble.

Cumulative impactAdvantages Disadvantages

• see chapter 4.6 • see chapter 4.5

Question 13. Do you support the adoption of all of the proposals set out in chapter 5.3 to 5.7 above?

5.9 Voluntary registration under section 15(8) 5.9.1 The owner of land may voluntarily apply to the registration authority to register that land as a green, under section 15(8) of the 2006 Act. A landowner may wish, for example, to voluntarily register land where it is already used in the same way as a green, and the intention is to formalise the position, or an organisation promoting the provision of an open space may wish to require registration as a condition of support to the landowner for improvements to public access to the land.

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5.9.2 There is no restriction on the voluntary registration of land under section 15(8), provided that the consent is obtained of the necessary interests in the land (such as any leaseholder). Recent data suggest that about 20 applications are made each year under section 15(8), of which the majority are granted. Given the special protection which is afforded to registered greens, we have considered whether any of the proposals in this chapter should be applied to applications made under section 15(8). We see no reason why it should be possible to confer special protection on voluntarily registered land which does not meet the requirements of the Character test, where such land would be incapable of registration on an application under section 15(1). Adopting the same test in relation to voluntarily registered land would ensure that all new greens, however registered, would adhere to the same standards in terms of character.

Question 14. Do you support the adoption of the Character test in relation to the voluntary registration of land as a green, under section 15(8) of the 2006 Act?

5.10 Alternative options 5.10.1 This consultation paper sets out those proposals which we believe are best able to deliver the objectives set out in paragraph 1.3.5 above. However, it is by no means exhaustive of the possible options. The criteria for greens registration in section 15 of the 2006 Act are complicated, and provide a number of opportunities for reform — in the section of this chapter dealing with technical options, we have examined only those we consider most practicable. However, we would welcome from respondents proposals for other changes to the registration system which would help achieve our objectives.

Views invited 15. Do you have other proposals for reform to the greens system which would help deliver the objectives set out in paragraph 1.3.5 above? It would be helpful if your response sets out how the proposal would work, your assessment of the impact on all parties to an affected application (including the applicant, landowner and registration authority), and so far as is possible, the costs and benefits. Please note that the Government has no plans to relax the criteria for registration of new greens (see paragraph 1.4.4 above).

5.11 Other greens issues 5.11.1 If the Government were minded to legislate to enact reforms relating to the greens registration system, it could also look at reforms to the management of greens. In the Common Land Policy Statement 2002, the Government and the National Assembly for Wales set out a package of reforms relating to common land and greens. Most of these reforms were given effect by the Commons Act 2006, but the management options for greens in section 4 of the white paper were not adopted owing to lack of Parliamentary time. The proposed reforms (other than those addressed in the 2006 Act) dealt with:

• reassigning title to greens wrongly vested in the local authority;

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• enabling facilities to be built on a green which would add comfort or conven-ience to public enjoyment;

• enabling the managers of greens to grant consent for temporary parking; • resolving questions of vehicular access over greens (including the regularisa-

tion of driving over existing access ways, and regulating the grant of new vehicular easements).

Views invited 16. Do you wish to see any of the reforms set out in paragraph 5.11.1 above addressed in new legislation on greens?

Views invited 17. If so, which of these reforms are a priority for action, and what outcome do you seek to achieve?

Photo 8: Land off Onslow Road, Newent, Glos (application rejected)

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Annexe A: List of questions

Question 1. Taking account of the Government’s plans for the new Local Green Spaces designation, do you agree that the problems identified with the present greens registration system are sufficient to justify reform — so that the ‘no change’ option should be rejected?

Question 2. Do you support this proposal to streamline the initial sifting of applications?

Question 3. Do you agree that an initial determination should be made by the registration authority after inviting initial comments from the owner of the land affected by the application? Question 4. Do you support this proposal to enable landowners to make a deposit of a map and a declaration to secure protection against future applications to register land as a green? Question 5. Should landowners or registration authorities be required to take additional steps to publicise a declaration, to ensure that potential users know that they have limited time to make an application to register the land as a green? If so, what steps do you propose? Question 6. Do you support a proposal to introduce a character test to ensure that greens accord with the popularly held traditional character of such areas?

Question 7. Do you agree with the character test in paragraph 5.5.9 above i.e. that land must be open and unenclosed in character? Do you support the adop-tion of additional criteria such as those in paragraph 5.5.11 above?

Question 8. Do you support the proposal which would rule out making a greens registration application where a site was designated for development in a proposed or adopted local or neighbourhood plan?

Question 9. Do you support the proposal that a greens registration application could not be made after an application for planning permission had been submit-ted in respect of a site, or on which there was statutory pre-application consultation, until planning permission had itself been refused or implemented, or had expired? Question 10. Do you support this proposal to charge a fee for applications?

Question 11. If so, do you support the proposal for refunding the fee where an application is granted?

Question 12. Do you agree that the fee should be determined by the registration authority and that a ceiling should be set at £1,000?

Question 13. Do you support the adoption of all of the proposals set out in chapter 5.3 to 5.7 above? Question 14. Do you support the adoption of the Character test in relation to the voluntary registration of land as a green, under section 15(8) of the 2006 Act? Views invited 15. Do you have other proposals for reform to the greens system which would help deliver the objectives set out in paragraph 1.3.5 above?

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Annexe A

It would be helpful if your response sets out how the proposal would work, your assessment of the impact on all parties to an affected application (including the applicant, landowner and registration authority), and so far as is possible, the costs and benefits. Please note that the Government has no plans to relax the criteria for registration of new greens (see paragraph 1.4.4 above).

Views invited 16. Do you wish to see any of the reforms set out in paragraph 5.11.1 above addressed in new legislation on greens?

Views invited 17. If so, which of these reforms are a priority for action, and what outcome do you seek to achieve?

Photo 9: The Fields, Patchway, Glos. (application rejected)